Friday, December 30, 2011

"Tea Party Activist" files lawsuit to get Gingrich on the Virginia ballot: Gingrich campaign still contemplating potential legal actions

On Thursday December 29, 2011 Jonathan Moseley, unconnected with any presidential campaign, filed a lawsuit in an attempt to obtain ballot placement for Newt Gingrich in the Virginia primary. 

I have decided against critiquing the details of this lawsuit, but will essentially say there is substantial merit to much of it, but it is ultimately doomed to failure.  The major premise is that Newt Gingrich submitted over 11,000 valid signatures when only 10,000 were required. 

The major problem as I pointed out yesterday is that Gingrich has already acknowledged that at least 1500 signatures were obtained by fraud, not technical noncompliance, and not failure to state a complete, or legible address.  By Gingrich's own admission he did not submit at least 10,000 non-fraudulent signatures.

Setting the merits aside, based on statements in the press release, this is simply an odd manner to pursue litigation.

For example:

"Virginia attorney Jonathon Moseley intends to quickly amend the lawsuit to add additional Republican voters as co-Plaintiffs, encourage the Gingrich campaign to join the lawsuit or file a better one along similar lines, and to refine the legal claims and arguments in the lawsuit to fit this rather unusual situation."

Mr. Moseley encourages a campaign to file a better lawsuit than his, and refine the legal claims - very odd.

"Moseley will be seeking additional Virginia voters to join the lawsuit, legal expertise to help refine the lawsuit and work on the case, and financial contributions."

Join him, provide legal services to refine his legal claims, and give money.


As an aside, the procedural defects are likely enough to avoid a timely ruling in his favor.

Thursday, December 29, 2011

Gingrich out of good legal arguments to get on the Virginia ballot

On Tuesday I outlined the one decent method for obtaining ballot access for Newt Gingrich or Rick Perry in Virginia.  Information has come to light, directly from the Gingrich campaign, that a paid signature gatherer committed fraud.  This fraud eliminates the possibility of Gingrich utilizing the method I suggested on Tuesday.  I had heard rumors of this, but waited for verification before publishing.

That same day Perry chose his route, one I had advised against, but it may be because he never had 10,000 signatures either regardless of the method of collection.  In his Complaint filed in the U.S. District Court for Eastern District of Virginia he indicates he submitted over 6000 signatures of qualified voters.  When pursuing a courtroom remedy, if he submitted over 10,000 signatures he believed to be valid, he should have indicated as such in the Complaint.  The decision to indicate just over 6000 signatures, is an indication he never had close to the necessary 10,000.

With the admission of approximately 1500 signatures gathered by fraud for Newt Gingrich, this means he can not claim he submitted the proper number of signatures, only with validating witness problems.

Gingrich is in as weak a position as Perry now.  Joining in Perry's suit is probably a waste of time and money.  The only option is a legislative change which is nearly impossible.

Folks will have to vote for Mitt Romney or Ron Paul in the Presidential primary in the Commonwealth of Virginia in 2012.

Tuesday, December 27, 2011

Perry files lawsuit to get on the VA ballot: is it a waste of time?

While I whiled away explaining how best to go about getting on the ballot in Virginia, Governor Perry had already hired a Virginia legal team and filed a lawsuit challenging his exclusion from the Virginia ballot.  Complaint, here.

For those readers perusing my earlier article you will identify that Perry chose option three which I believe is doomed to failure.  This is not because it is constitutionally incorrect, but rather that it is highly unlikely to result in preliminary relief and placement on the 2012 ballot.

Count 2 of the complaint alleges that the sheer number of signatures required, and the number form each Congressional district is so onerous as to be unconstitutional.  I have no mercy for Count 2, it will not be successful and is nothing more than an excuse for lack of organization.

An interesting point is that Perry claims to have submitted at least 6,000 valid signatures.  If he actually met the threshold, but there were problems with the form, why not just claim he submitted over 10,000 as required.  When establishing a case like this, you generally would need to obtain all the necessary signatures, only with out of state petition gatherers so you can maintain standing.

Final point and bonus for readers: There is a blatantly incorrect statement of law in the Complaint.  If you read my earlier article you might be able to find it.  I will send a prize (of minor value) to the first person to correctly identify the incorrect statement of law.

Update: Perry's Memorandum in support of a preliminary injunction has been filed.  Available here. I will leave it to readers to scrutinize the pleading.  I put the chances of success at 15:1 due to the open status of the case law on this issue in this Circuit, Perry's lack of sufficient signatures, and failure to file a lawsuit before the December 22 petition deadline.

Provoking a Virginia election law legal battle: How Gingrich and Perry could still get on the Virginia primary ballot

UPDATE: 12/28/11 ~10:00 AM
Rick Perry jumps into federal court.
National Review links to the article at

Update: 12/29/11 ~11:45 AM
I think Gingrich is out of luck.  Looks like a Romney-Paul primary is all but guaranteed in Virginia.

Merry Christmas to Mitt Romney and Ron Paul.  After submission of signatures to qualify for the Virginia Republican Presidential Primary in 2012, they are the only two candidates who will appear on the ballot.

Newt Gingrich and Rick Perry also submitted the requisite number of signatures, but did not qualify to appear on the ballot according to the Republican Party of Virginia.

After Gingrich learned he would be excluded, he referred to his exclusion as Pearl Harbor, and promised to wage a vigorous write-in campaign.

This has frustrated many Virginia Republicans, who currently view Gingrich as the front runner in our great Commonwealth.

There is still a way for Gingrich and Perry to get on the ballot, but it requires fast action.  It can not await the results of back room negotiations.

How did we get here?

Virginia apparently is known for having some of the most onerous ballot access requirements in the country.

Here is what is required generally of primary candidates:

"A candidate for nomination by primary for any office shall be required to file with his declaration of candidacy a petition . . . on a form prescribed by the State Board, signed by the number of qualified voters specified below . . .and listing the residence address of each such voter. Each signature on the petition shall have been witnessed by a person who is himself a qualified voter, or qualified to register to vote, for the office for which he is circulating the petition and whose affidavit to that effect appears on each page of the petition." Va. Code § 24.2-521.

Now what this means is that you have to have a certain number of signatures of qualified voters, and they must be witnessed by a qualified voter who then signs an oath that s/he witnessed the signatures on the petition.

Seems pretty straight forward, the statute then goes on to list the various offices for which the number of signatures are needed:  United States Senate, Governor, Lieutenant Governor, or Attorney General, United States House of Representatives, Senate of Virginia, House of Delegates, a constitutional office, membership on the governing body of any county or city, membership on the governing body of any town, and "for any other candidate, 50 signatures." Va. Code § 24.2-521.

Presidential Primary contenders appear to be missing from the list.

Instead Presidential primary qualification and signature gathering is governed under Va. Code § 24.2-545.

Specifically subsection B states in part:

"Any person seeking the nomination of the national political party for the office of President of the United States . . . may file with the State Board petitions signed by at least 10,000 qualified voters, including at least 400 qualified voters from each congressional district in the Commonwealth, who attest that they intend to participate in the primary of the same political party as the candidate for whom the petitions are filed. Such petitions shall be filed with the State Board by the primary filing deadline. The petitions shall be on a form prescribed by the State Board and shall be sealed in one or more containers to which is attached a written statement giving the name of the presidential candidate and the number of signatures on the petitions contained in the containers."  Va. Code § 24.2-545

This is a similar process to that set out in Va. Code § 24.2-521, but clearly has different requirements for filing other than a specification of the number of signatures required.

Where does the state party come in?

Virginia law then hands off the duty of certifying signatures to the state party.  That's right, the State Board of Elections does not certify any signatures, and the party has control over that process as described further in Va. Code § 24.2-545(B):

"The State Board shall transmit the material so filed to the state chairman of the party of the candidate immediately after the primary filing deadline. The sealed containers containing the petitions for a candidate may be opened only by the state chairman of the party of the candidate. The state chairman of the party shall, by the deadline set by the State Board, furnish to the State Board the names of all candidates who have satisfied the requirements of this section."  Va. Code § 24.2-545(B).

It is the duty of the party to determine who satisfied the signature requirements.  The deadline set by the State Board of Elections is December 27, 2011 pursuant to Va. Code § 24.2-527 (as an aside, although the SBE claims authority to set this deadlines pursuant to Va. Code § 24.2-527, the authority appears to be actually derived from Va. Code § 24.2-545). 

Did the state party rig this process for Romney or did an independent candidate for state office force the RPVA to scrutinize signatures in an unreasonable manner?

In my not so humble opinion, no on Romney and maybe on the lawsuit.

As indicated by Brian Schoeneman here,

”. . . plenty of other candidates with fewer resources have made it onto the Virginia presidential primary ballot since the rules were loosened in 1999. Here’s a quick list:
2008 – Barack Obama, Dennis Kucinich, Hillary Clinton, Bill Richardson, Joe Biden, John Edwards; Ron Paul, John McCain, Fred Thompson, Mike Huckabee, Rudy Giuliani, Mitt Romney.
2004 – Al Sharpton, John Kerry, Wesley Clark, Howard Dean, Joe Lieberman, John Edwards, Dennis Kucinich, Dick Gephardt, Lyndon Larouche.
2000 – Alan Keyes, Gary Bauer, George W. Bush, John McCain, Steve Forbes."
The daunting task of getting on the ballot under the current law in Virginia has been overcome repeatedly by less influential campaigns.  I see no tie to the Romney campaign  (and I have been quite critical of Romney in the past).

As indicated here and here, a lawsuit filed in October 2011 by an independent candidate, challenging the RPVA's process of rubber stamping petition signatures is supposedly the cause of greater scrutiny of petition signatures.  This might be the case.

RPVA came out with a policy for petition verification which is laid out in some detail here.  The problem is I can not find any reference to this policy prior to December 21, 2011, especially the free pass on scrutiny if you submit more than 15,000 signatures.  Looking at the metadata of the adobe document detailing the RPVA's policy regarding signature submission, it was created December 21, 2011, the day before the signature submission deadline.  This appears to be a last minute change, and the most reasonable explanation is the October 2011 lawsuit.

Gingrich seems the most interested in getting on the ballot, so what are his options?

Despite a quick suggestion that he would run a write-in campaign, it is a non-starter in the Commonwealth.  Va. Code § 24.2-529 specifically states, "No write-in shall be permitted on ballots in primary elections."  Also under Va. Code § 24.2-644(C), "At all elections except primary elections it shall be lawful for any voter to vote for any person other than the listed candidates for the office by writing or hand printing the person's name on the official ballot."  In short - no write-ins in the presidential primary.

Gingrich's second option is to try to work within the RPVA to get them to change their minds.  The problem is the RPVA was required to make its decision and transmit the results to the State Board of Elections today.  Once the results are transmitted, I do not see a way the SBE can change its procedures without Court intervention.

Gingrich's third option is to try and have the Virginia legislature pass an emergency measure, changing the requirements for the 2012 primary.  As indicated here, this would be difficult.  I believe it is impossible.

Which leaves us with option four: Litigation!

If Gingrich or Perry want to get on the ballot, they need to sue and sue now

There are numerous junk claims that can be brought: such as the RPVA system of certification is unfair, or was changed at the last minute.  These should be avoided.

There are federal constitutional claims that could be brought challenging the need to have a qualified voter gather signatures, or that signatures need to be on witnessed, and certified two sided forms.  These should also be avoided, although there is a small amount of merit to some of these claims.

The real lawsuit is based on the statutory construction of Va. Code § 24.2-545.  Once again this statute creates an entire system for submitting signatures to qualify to be on the presidential primary ballot.  This statute completely rewrites the process laid out in Va. Code § 24.2-521.  As such, I believe only Va. Code § 24.2-545 governs the gathering and submission of signatures.

Va. Code § 24.2-545 does not require:
            A residence address
            That each signature be witnessed
            That the witness be a qualified voter

The only specific detail required by Va. Code § 24.2-545 is "The petitions shall be on a form prescribed by the State Board . . ."  This is not blanket permission to the SBE to create any requirements on the form it desires.  The rigorous petition gathering requirements of Va. Code § 24.2-521 are noticeably absent from Va. Code § 24.2-545

To qualify to be on the ballot under Va. Code § 24.2-545 the signatures of 10,000 qualified voters, and 400 per congressional district are required.  All the superfluous information is not required. 

The way to challenge this is in the Circuit Courts of the Commonwealth of Virginia.  It must be done on an emergency basis, as relief will be unavailable by late January when absentee ballots must be mailed.  Every day of delay increases the chance of a loss in court.  Going to court is no guarantee, but it provides the highest probability of success at altering the primary ballot. 

The Richmond City Circuit Court is accustomed to this type of political emergency lawsuit.  Getting on the ballot is not a public relations issue, it is a legal one.

Gingrich now needs to go pay some lawyers with the money he should have spent on petition gathering.

Great coverage of this issue can be found at two of Virginia's premier conservative blogs:

Sunday, December 4, 2011

Cuccinelli for governor bumper stickers


I have ordered Cuccinelli for Governor bumper stickers.  His campaign staff have all but assured me such bumper stickers will not be available until the spring.

My stickers will be here within a couple of weeks.  If you desire a KTC for Gov bumper sticker feel free to email me a name and address at ppradoslaw@, without the nospam.

Once I have them in my possession I'll post a pic.  They are an oval that says "don't tread on me" "KTC" "Cuccinelli for VA Governor"

the Constitution matters folks.

Update: In retrospect they are a little nonconformist, but they suited my preference.

Friday, November 4, 2011

Does the former CEO of the National Restaurant Association with ties to Romney campaign know more than he is saying?

On Tuesday I broke the story that a Romney supporter, the subsequent C.E.O. of the National Restaurant Association after Herman Cain likely had access to inside information about the sexual harassment allegations against Herman Cain.

Given a piece of news today about the timing of settlement, the likelihood Steven C. Anderson had knowledge of at least one of the settlements is extremely high.

According to information at the National Restaurant Association Steven C. Anderson took over at the National Restaurant Association in September 1999.  According to Joel Bennett, per CBS News, attorney for one of the women who received a settlement, the settlement agreement was executed in September 1999, the same month Steven C. Anderson took over as C.E.O.  It would be highly unusual to take charge as the executive without knowledge of recent or impending litigation status.

Steven C. Anderson claims no knowledge

A reporter took my advice and followed up with Steven C. Anderson.  According to the Boston Globe:

"Chris Krese, a spokesman for Steven Anderson, told the Globe, 'He has not commented about this story because he didn’t have knowledge of the allegations when he was president and CEO of the (National Restaurant Association). He didn’t have knowledge of it so he obviously couldn’t have provided the story to the media or anyone, and he didn’t provide the story to the media or anyone.'”

I tend to take people at their word when their explanation is plausible, so I left it alone for a few days.

So does Steven C. Anderson know more than he is saying?

He has to know more.

Set aside the exact timing in September of him taking office at the National Restaurant Association for a few moments and find some description of his role when he came aboard:

According to an August 30, 1999 article in Nation's Restaurant News Steven C. Anderson was well versed in his new role when he took office in September 1999:

"Anderson now is learning the ropes at the NRA. Since the announcement of his appointment in late May, he has spent much of the summer in conducting an organizational audit of the group and talking With the board's leadership. He also has visited the Educational Foundation and attended a meeting of the International Society of Restaurant Association Executives.

In early August he moved his personal effects -- pictures of his children, several photos of past presidents wishing him well and framed articles chronicling his career -- into his new corner office. He now is collecting the war stories of senior staff members behind closed doors. In September he will tackle budget issues. After assessing the necessity and effectiveness of programs that are now in place, he will begin to make changes, he said." (emphasis added)

Once again, as I said on Tuesday:

"Reporters should follow-up with Mr. Anderson to discern his knowledge.  At the least he likely knows the short list of people with inside knowledge about the sexual harassment allegations."

Wednesday, November 2, 2011

Cain claims Perry adviser is behind the leak of the harassment scandal to Politico

And I do not buy it. 

UPDATE 4:50 11/3/11:  A number of sources are already reporting that the Campaign manager for Herman Cain has accepted the explanation of Curt Anderson.  Good job dialing back quickly guys.

In an interview with Forbes, Herman Cain states in clear terms he believes former aide Curt Anderson is the source of the harassment scandal leak to Politico on Sunday evening.  In support of this, Mr. Cain identifies a private conversation he had with Anderson in preparation for 2004 Senate run.  The following factors weigh in favor of Curt Anderson being the source.  He probably knew something about the scandals and he switched sides during the Presidential race.

There are a few items that suggest it was not actually Curt Anderson

1. Curt Anderson denies the conversation took place.  This denial should generally be ignored due to its self serving nature, but if he were lying there are so many better lies to concoct, than simply “I never knew.”

2. According to Politico they saw documentation describing the allegations and showing their resolution.  This would have had to come from someone in possession of the documents.

3. According to Herman Cain in the Forbes article “When I sat down with my general campaign consultant Curt Anderson in a private room in our campaign offices in 2003 we discussed opposition research on me. It was a typical campaign conversation. I told him that there was only one case, one set of charges, one woman while I was at the National Restaurant Association. Those charges were baseless, but I thought he needed to know about them. I don’t recall anyone else being in the room when I told him.”
All of this makes sense if there was an opposition briefing that Anderson forgot, and the real source was someone else, a National Restaurant Association insider.

Leads from the Romney camp?

Anyone have reasonable leads somewhere else?

Rush Limbaugh quoting Northern Virginia Lawyer?

Wherein Rush Limbaugh quotes directly from my blog:

Interesting day.

Tuesday, November 1, 2011

Former President of National Restaurant Association has Ties to the Mitt Romney Campaign

UPDATE: 11/2/11 ~ 18:50 Why I do not believe it was Curt Anderson from the Perry Camp, despite Herman Cain's accusation. 

UPDATE: 11/4/11 16:00 Steven C. Anderson may know more than he has suggested: 

Based on a suggestion from a local blogger to look into political donors on the Board of Directors of the National Restaurant Association for potential ties to presidential campaigns, I have attempted to identify anyone privy to inside information about the National Restaurant Association who also has recent ties to any presidential campaign.

According to the October 2011 FEC report for ROMNEY FOR PRESIDENT INC. a gentlemen named Steven C. Anderson gave $1,000.00 on July 14, 2011.  FEC search function here.

Steven C. Anderson is the same gentlemen who took over the helm as Chief Executive Officer at the National Restaurant Association (after a brief intermission) upon Herman Cain's departure in 1999.  As CEO it is highly likely he would have been privy to details of litigation and threats about litigation from the immediately previous tenure of Herman Cain.

There is little more than a coincidence between the support for Mitt Romney and the likelihood that Mr. Anderson knows the background of the sexual harassment threats.  Nonetheless, watchers of this scandal endlessly pontificate about whether President Obama or a rival campaign is the driving force behind the bombshell story that appeared in the Politico on Sunday. 

Reporters should follow-up with Mr. Anderson to discern his knowledge.  At the least he likely knows the short list of people with inside knowledge about the sexual harassment allegations.

~23:15 11/1/11 UPDATE: Apparently as this post has taken on a life of its own I need to clarify a few things.

1. This truly is the exact same Steven C. Anderson at the same address that gave donations while at the National Restaurant Association in the early 2000’s.

2. I have purposefully not listed his address, and made it slightly difficult to find.  There is an error in the FEC database that leads to a mistaken link for those who dig deeper.  Rest assured he made the donation.

3. He may not be the source.  If he is not, then he likely knows the short list of people who could have been the source.

Lastly, do not forget to follow @ppradoslaw on Twitter as I broadcast to thousands of conservatives libertarians, and a handful of patient moderates, democrats, and progressives.

Monday, October 17, 2011

Why Virginia will not be invited to the dance (the Supreme Court battle over the individual mandate)

In 2012 the Supreme Court will decide for the first time if Congress has the power to force the purchase of a good or service under Article I § 8 of the Constitution, and Virginia will be left watching from home.

President Obama signed the PPACA, a sweeping overhaul of America's healthcare system, into law in March 2010.  Litigants, including high profile state attorneys general lined up to challenge the new law, specifically the individual mandate.  A strategic decision to bring suit separately by the Commonwealth of Virginia was a tremendous gamble, and is about to become a losing bet.

On September 8, 2011 the U.S. Court of Appeals for the Fourth Circuit overturned Virginia's challenge to the individual mandate in Commonwealth v. Sebelius.  The fact the 4th Circuit upheld the individual mandate was not surprising given the expectations from the panel selected.  The concerning element of the ruling was the reason for the dismissal, standing.  Standing is the doctrine that one must be the party actually injured before you are allowed to bring a lawsuit, the concept is derived from Article III § 2 Cl. 1 of the Constitution.  Further discussion of standing can be found here.

Decisions from the 6th, 11th, and now 4th Circuit are ready to be appealed to the Supreme Court.  Other courts are not far behind.  Because of the nature of the 4th Circuit ruling in the Virginia case, I predict the Supreme Court will not invite the Commonwealth of Virginia to argue in one of the most important cases of our era.

Did Virginia make a mistake by going it alone?

In a word, no.

A bare minority of states decided before the PPACA was passed to sue to invalidate Obamacare once it was passed.  This became the successful Florida and 11th Circuit cases.  Virginia declined to participate in that lawsuit.  I believe there are three major reasons why Virginia pursued this matter separately.

1. Speed:  Virginia could file in the U.S. District Court for the Eastern District of Virginia also known as the "Rocket Docket."  It is called this because statistically the E.D. Va. is the fastest federal court for adjudicating civil cases in the country.  By suing in the E.D. Va. Virginia could likely get a decision sooner, be in the appeals court sooner, and be the first to appeal to the Supreme Court.  The Fourth Circuit is also known for being fairly swift.

2. Medicaid:  The other states wanted to pursue another argument regarding the unconstitutionality of Obamacare due to additional burdens placed on state Medicaid programs.  When the federal government gives money to the states it can do so with strings attached.  There are some minor limitations to this principle, but they did not apply in this instance.  Despite winning in both the district court and the 11th Circuit on the issue of the individual mandate, the other states lost the Medicaid argument before all of these judges.  This was a bad argument, and watered down an otherwise strong and more important argument invalidating the individual mandate.

3. VHCFA: Virginia passed the Virginia Health Care Freedom Act ("VHCFA") shortly before the passage of Obamacare.  This act says in short: "No resident of this Commonwealth, . . . shall be required to obtain or maintain a policy of individual insurance coverage . . ."  Va. Code § 38.2-3430.1:1.  This law provided Virginia a unique opportunity to challenge a federal law as being in direct contravention of a state law.

These are all good reasons.

Many will speculate as to the additional reasons Virginia filed separately.  The purpose of this article is not to speculate as to those additional reasons.

Did something go awry in the District Court?


Virginia, for the most part won at the District Court level.  The little Virginia lost (conceivably a large loss), allowed Virginia to control the timing of appeal.  Virginia did what it planned and successfully used the speed of the rocket docket to reach the 4th Circuit first.

Should Virginia have merged its case in the 4th Circuit?

Probably not.

A case from the Western District of Virginia also reached the 4th Circuit at about the same time.  This case, Liberty U. v. Geithner, was brought on behalf of a university and a handful of individuals on commerce clause grounds, and religious liberty grounds.  The plaintiffs in Liberty U. lost at an early stage in their case in the district court.  In the 4th Circuit the cases were to be heard on the same day by the same judges, but were to remain separate.  Virginia made no attempt to merge the two cases.

The Liberty U. plaintiffs had problems showing standing, and their religious liberty arguments were fairly weak.  Virginia, as a governmental entity, came into the 4th Circuit in a strong position, and made a good strategic decision not to tie its fate to the Liberty U. plaintiffs.

Virginia lays the groundwork for its loss.

After all the briefing, and preparation, Virginia laid out the basis for its loss at oral argument.  The 4th Circuit panel selection was unfavorable for Virginia.  Virginia made things worse as the panel hammered counsel on the issue of standing, and counsel for Virginia ultimately rested their entire basis for standing on the VHCFA.  Stating in no uncertain terms:

"I'm resting my claim on my statute." - Va. Solicitor General at oral argument on Commonwealth v. Sebelius, Record No. 11-1057, U.S. Court of Appeals for the Fourth Circuit, May 10, 2011.

For a detailed discussion of oral argument see my post here.

Intervening trouble

After the 4th Circuit argument, the 6th and 11th Circuit's hear oral arguments in similar cases.  The 4th Circuit then orders Virginia to perform additional briefing, delaying the potential date for a decision.  The 6th Circuit turns around a decision in approximately one month upholding the individual mandate.  Virginia has now lost the advantage of speed.  The 11th Circuit then rules, striking down the individual mandate and dismissing the Medicaid challenge without fanfare.  Virginia lost its second reason for going it alone.  The 4th Circuit does not rule until September. 

Virginia took just enough rope . . .

Relying on Virginia's steadfast unwavering statement that the VHCFA is the only basis Virginia has for standing, the panel reversed the district court and dismissed Virginia's case for lack of standing.  The panel did not even explore any other possibilities for standing because Virginia chose only one.  Regardless of the panel, this was always a mediocre legal argument, but a good argument in the media.  Yet, the case is not tried in the media.  The last reason to go it alone was gone.

But how did the other states survive this hurdle?

In a little discussed portion of the 11th Circuit opinion, the court examined the nature of the parties in the 11th Circuit case.  By that time, 11th Circuit case involved over 25 states, the NFIB, and a handful of individuals.  The 11th Circuit analysis indicates

"Although the question of the state plaintiffs’ standing to challenge the individual mandate is an interesting and difficult one, in the posture of this case, it is purely academic and one we need not confront today. The law is abundantly clear that so long as at least one plaintiff has standing to raise each claim—as is the case here—we need not address whether the remaining plaintiffs have standing. See, e.g., Watt v. Energy Action Educ. Found., 454 U.S. 151, 160, 102 S. Ct. 205, 212 (1981) . . ."  p. 10.

The 11th Circuit determined that at least one individual plaintiff had standing, and as such all the plaintiffs may proceed.  No such individual plaintiffs were joined with Virginia in its lawsuit, and it would have been difficult to predict this outcome.

If Virginia lost due to lack of standing, do they still get to go to the Supreme Court?

I believe the answer to this question will be no.

Standing is a procedural issue.  A decision on the Constitutionality of the individual mandate is a substantive ruling.  The Supreme Court takes only a small proportion of all cases appealed.  One of the major factors it looks for when deciding to take cases is a circuit split, a disagreement between circuit courts on a major issue.  There is currently a circuit split between the 6th and 11th Circuits on the Constitutionality of the individual mandate.  The 4th Circuit dismissed Virginia's case on procedural grounds, and did so on an issue that is nonexistent in all the other cases.  The Supreme Court will likely take the appeals of the 6th and 11th Circuits and may even join in the Liberty U. case and cases not yet decided in the 3d, 9th, and D.C. Circuits. 

If the Supreme Court allows Virginia to proceed, it will add a substantial additional complicated standing issue for which there is no current circuit split.  For this reason I expect that Virginia will not be invited to the dance and will have to watch the litigation play out with the rest of us.

Where was the mistake made and what can be done?

At some point extremely early in the litigation, during the first motion to dismiss filed by the federal government in the district court, Virginia made the decision to use this argument, and only this argument to create standing.  Judge Hudson agreed with Virginia’s reasoning, and Virginia did not have to face this issue again until the appeal. 

Little can be done to add to the existing arguments.  The same argument was brought at both the trial and appellate levels and the petition for writ of certiorari has already been filed.

Making this argument was a huge risk.  If successful, it would provide an avenue for extensive 10th Amendment litigation driven by federalist attorneys general.  This would possibly be an even bigger victory than simply overturning Obamacare.  If unsuccessful, Virginia ran the outside risk that it would be left out of a Supreme Court battle that may decide the scope of Congressional power for decades to come.

If Virginia does not get before the Supreme Court, it is time to bring the next 10th Amendment case, and then the next one.  Still, in Commonwealth v. Sebelius Virginia took the risk, and it looks like it is about to come up on the short side of history. 

My previous analysis of litigation regarding the individual mandate can be found here.

Friday, August 12, 2011

First Federal Court of Appeals declares individual mandate unconstitutional

Early this afternoon the 11th Circuit Court of Appeals declared the individual mandate of the PPACA unconstitutional in a 2-1 decision.

The case, Florida v. U.S. Department of Health and Human Services, is the matter filed on behalf of 26 states, the NFIB, and a handful of individual plaintiffs.  Most notably the lower court decision in this case was one of only two declaring the individual mandate unconstitutional, and the only case declaring the entirety of Obamacare unconstitutional as a result.

My previous analysis from January 2011 of the lower court ruling can be found here

What this means for the Supreme Court

The Supreme Court now has two competing appellate decisions from different parts of the country on the same issue: the earlier decision from the 6th Circuit upholding the individual mandate, and now this decision from the 11th Circuit declaring the individual mandate unconstitutional.  This "circuit split" is one of the strong factors considered by the Supreme Court when deciding to take a case.

What this means for the challengers in the 11th Circuit

There was always a danger that the 11th Circuit challengers might win this case, but that the government might seek and obtain en banc review (review by the entire appellate court).  This would have delayed a petition to the Supreme Court for months and months.  Instead the challengers lost on a couple of issues, and may file a petition for Writ of Certiorari as soon as they are ready.

Introduction to the opinion

The opinion is a monstrous 304 pages (including the brief appendix).  Below is an analysis primarily of the majority decision, and what it means for challengers of the individual mandate throughout the country.  Judges Dubina and Hull wrote for the majority, while Judge Marcus wrote the dissent.

Findings and Medicaid - the first 67 pages

Most of the first 67 pages are devoted to stating factual findings, primarily reciting the legislative history of the PPACA, Congressional findings regarding the bill, and actual terms of the bill.

Did you know the suit filed by the states challenged Congressional authority to expand the mandates within Medicaid?  This is the portion of the lawsuit in which Virginia did not also file a similar action.  The states actually lost on this issue in the lower court and the decision was the same here before the 11th Circuit.  The short version of how Medicaid works is that states may opt out of the program, and so any constraint placed on the program by Congress are inherently not coercive, and coercion equals unconstitutionality.

The history of the Commerce Clause and explanation of the necessary and proper clause

The Commerce Clause is one of the enumerated powers under Article 1 § 8 of the U.S. Constitution allowing Congress to write laws "To regulate Commerce with foreign Nations, and among the several States . . ."  The majority goes to great lengths to detail commerce clause jurisprudence in pages 67-92 of the opinion.  A Constitutional law course on the Commerce Clause could be taught from this portion of the brief.

Pages 92-99 are devoted to explaining the Necessary and Proper Clause also of Article 1 § 8 of the U.S. Constitution allowing Congress "to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States . . ."

The individual mandate exceeds the powers allowed under the Commerce Clause

Given the length of the opinion I will allow the judges to speak for themselves:

In commenting on the court's need to intervene: "When Congress oversteps those outer limits [of the Commerce Clause], the Constitution requires judicial engagement, not judicial abdication." p. 104.

On the issue of activity v. inactivity: "[T]he Supreme Court has always described the commerce power as operating on already existing or ongoing activity."  p. 108.  Nonetheless, "we are not persuaded that the formalistic dichotomy of activity and inactivity provides a workable or persuasive enough answer in this case."  p. 109.  The decision is not made based on the concept that not buying health insurance constitutes activity or inactivity.

What the Court views as the actual legal question: "We perceive the question before us to be whether the federal government can issue a mandate that Americans purchase and maintain health insurance from a private company for the entirety of their lives." p. 112. 

On the unprecedented nature of behavioral mandates (economic or otherwise): "Given the attractiveness of the power to compel behavior in order to solve important problems, we find it illuminating that Americans have, historically, been subject only to a limited set of personal mandates: serving on juries, registering for the draft, filing tax returns, and responding to the census." p. 119.  "[T]he individual mandate is a sharp departure from all prior exercises of federal power." p. 120.

Why looking at the decision to not purchase health insurance by everyone (i.e. in the aggregate) is not a justification for the individual mandate:  "Applying aggregation principles to an individual’s decision not to purchase a product would expand the substantial effects doctrine to one of unlimited scope." p. 124.  "Although any decision not to purchase a good or service entails commercial consequences, this does not warrant the facile conclusion that Congress may therefore regulate these decisions pursuant to the Commerce Clause."  p. 125. 

On what is actually being regulated: "But the individual mandate does not regulate behavior at the point of consumption . . . Instead, the language of the individual mandate in fact regulates a related, but different, subject matter: when health insurance is purchased."  p. 130 (internal quotations omitted). 

Why the federal government's analysis of Commerce Clause Jurisdiction is incorrect

On the nefarious reason why the federal government chooses to argue that the individual mandate is Constitutional under the Commerce Clause because it regulates the consumption of healthcare (as opposed to health insurance):  "Because an individual’s decision to forego purchasing a product is so incongruent with the “activities” previously reached by Congress’s commerce power, the government attempts to limit the individual mandate’s far-reaching implications.  Accordingly, the government adroitly and narrowly redefines the regulated activity as the uninsured’s health care consumption and attendant cost-shifting, or the timing and method of payment for such consumption."  pp. 135-136.

On the issue of the uniqueness of the healthcare system as the government's argument for allowing this one infringement of the bounds of the Commerce Clause:  "The government’s five factual elements of “uniqueness,” proposed as constitutional limiting principles, are nowhere to be found in Supreme Court precedent. Rather, they are ad hoc, devoid of constitutional substance, incapable of judicial administration—and, consequently, illusory."  p. 168.  Translated this means the government's argument that healthcare is a special area of the economy and has different Constitutional limitations has absolutely no basis in law.

The other concerns of the Court and the thrilling conclusion

The Court acknowledged that insurance is traditionally an area of state concern and this increases the Constitutional concerns.  The Court also indicates that striking the individual mandate will not hinder the ability of Congress to regulate insurance companies. 

And most importantly the sweeping conclusion!  "The federal government’s assertion of power, under the Commerce Clause, to issue an economic mandate for Americans to purchase insurance from a private company for the entire duration of their lives is unprecedented, lacks cognizable limits, and imperils our federalist structure." p. 171. 

The individual mandate is not a tax

If the penalty from the individual mandate is a tax it is much easier for the government to show that it is Constitutional.  The Court noted that no Court has upheld the individual mandate penalty because it is considered a tax.  "It is not surprising to us that all of the federal courts, which have otherwise reached sharply divergent conclusions on the constitutionality of the individual mandate, have spoken on this issue with clarion uniformity." p. 173.  And later the Court concludes, "The plain language of the statute and well-settled principles of statutory construction overwhelmingly establish that the individual mandate is not a tax, but rather a penalty." p. 174.

And the challengers suffer a major loss

The individual mandate was found to be severable from the remainder of Obamacare.  Essentially courts are required to leave a statute intact, and simply remove the unconstitutional portions if at all possible.  The lower court found that the individual mandate was not severable from the remainder of the Act and therefore struck down the whole of Obamacare.  The 11th Circuit has reversed that decision, and merely determined the individual mandate itself was unconstitutional.

Judge Marcus's dissent

Judge Marcus wrote an over 80 page dissent determining that the individual mandate is Constitutional under the Commerce Clause.  I may go back later and pull quotes from this section to show differences in thought form other judges that upheld the individual mandate.


This was a great day for challengers of the individual mandate.  A victory was obtained in a federal appellate court accompanied by sound reasoning.  This nearly assures that the Constitutionality of the individual mandate will be decided by the Supreme Court.

I may, over the next week, explain the standing ruling in the 11th Circuit and why it does not bode well for the Commonwealth of Virginia.

My previous analysis of litigation regarding the individual mandate can be found here.

Wednesday, July 27, 2011

The real Ken Cuccinelli

Tuesday July 26, 2011 the Washington Times ran a column about Thomas Haynesworth, a man wrongfully accused of the heinous crime of rape as a young adult, and Kenneth Cuccinelli the (allegedly) ultra-conservative Attorney General of the Commonwealth of Virginia who has been working to free and exonerate Mr. Haynesworth.  For those who know Mr. Cuccinelli personally the only thing surprising about this story is the publicity involved.

Mr. Cuccinelli is actually a decent and honorable man.  When he sees something that is clearly awry for which he has control he tries to do something about it.  Unlike the persona often portrayed in the media, partially of Mr. Cuccinelli’s own making, he actually has a moral compass that compels him to do the right thing instead of the political thing.  He would probably say that both are generally aligned in most instances.  Nonetheless, do not be surprised if this is not the last time Mr. Cuccinelli steps up in the name of justice, despite the cause traditionally being associated with the left side of the political spectrum.  For those who knew him before he had a statewide, and arguably national, stage we are thankful that the office has not changed him to remove those elements that are most admirable and human.

I am pleased to see Mr. Haynesworth is free, and hope to see him exonerated soon.  It is a travesty to him, and a loss to society to have unjustly ripped him from his life, smeared his name, and left him in the misery of prison.  I hope God and man make up for it from this day forward. 

Monday, July 25, 2011

Legal qualifications for candidacy in Virginia elections explained

I have seen repeated concerns in Virginia political blogs about the residency requirements for candidates for political office.  The practical effect of allegedly failing to meet residency requirements appears to be minimal.  This post is specifically designed to explain the law behind the residency requirements for candidates for Virginia public office, and the potential consequences of failing to meet those requirements.

How does one become qualified to hold a public office?

“In order to hold any [elected] office . . .the candidate must have been a resident of the Commonwealth for one year next preceding his election and be qualified to vote for that office.”  Va. Code § 24.2-500.  Keep in mind this is simply to hold an office.  This is not the requirement to run for the office, or to be voted in to office.  This is the requirement to be sworn in.

How does a candidate become qualified to be a candidate for a particular public office?

“In order to qualify as a candidate for any office . . . a person must be qualified to vote for and hold that office.”  Va. Code § 24.2-500.  A similar provision applies to candidates in primaries under Va. Code § 24.2-519.  It is not actually possible to tell at the time that one qualifies as a candidate if that person will actually be a resident up until the actual election.  Presumably, the legislature means that to qualify you must be a resident for the year preceding the date one qualifies as a candidate.  The alternative is that this portion of the statute is potentially unenforceable as vague. 

How does one become “qualified to vote?”

Both the previous situations - holding an office, or qualifying as a candidate for an office -  require that the candidate or officer be qualified to vote for the office in question.  “‘Qualified voter’ means a person who is entitled to vote pursuant to the Constitution of Virginia and who is (i) 18 years of age on or before the day of the election…, (ii) a resident of … the precinct in which he offers to vote, and (iii) registered to vote.” Va. Code § 24.2-101.  Items i and iii are factual and self explanatory.  Item ii and the definition of “resident” is less clear.  "Residence" or "resident," for all purposes of qualification to register and vote, means and requires both domicile and a place of abode. To establish domicile, a person must live in a particular locality with the intention to remain. A place of abode is the physical place where a person dwells.”  Va. Code § 24.2-101.  The definition of abode is fairly self explanatory.  Domicile is a legal term of art that can generally be proven by showing that one intends to remain by changing mail delivery, drivers’ licenses, car registrations, and tax filing addresses to the new home.  It requires a very fact intensive analysis.

What does it take to get on the ballot?

Here is where the threat of criminal sanctions can arise in egregious situations.  A statement of qualification for candidacy must be filed by the candidate pursuant to Va. Code § 24.2-503.  In 2011 the dates for filing are different under HB 1507 due to redistricting.  There are different dates for filing the statement depending on if there is a primary, or if there is no primary.  The terms of the statement required are detailed in Va. Code § 24.2-501, which states in part “a person must file a written statement under oath, . . . that he is qualified to vote for and hold the office for which he is a candidate.” 

A statement made under oath, particularly to an agency of the Commonwealth of Virginia or its subparts is subject to potential criminal sanction under Va. Code § 18.2-434, which states in part “any person to whom an oath is lawfully administered on any occasion . . . willfully subscribes as true any material matter which he does not believe is true, he is guilty of perjury, punishable as a Class 5 felony.”  Under Va. Code § 18.2-10, class five felonies are punishable with “a term of imprisonment of not less than one year nor more than 10 years, or in the discretion of the jury or the court trying the case without a jury, confinement in jail for not more than 12 months and a fine of not more than $2,500, either or both.”

So what are the remedies for a candidate or voter negatively affected by the candidacy of a person not capable of holding or being a candidate for a particular office?

A. Criminal Sanctions

The reader must understand that prosecution of criminal matters is at the discretion of the local Commonwealth’s Attorney.  Anyone with knowledge of a crime can swear out the warrant for someone’s arrest.  But, a magistrate does not have to issue the warrant, and the prosecutor can drop the case.  The only actual crime potentially arising out of a situation with a non-legally qualified candidate is perjury under Va. Code § 18.2-434 for the action of submitting the false statement of qualification under oath.  Not only do criminal matters need to be proven beyond a reasonable doubt, but perjury requires that the person making the sworn statement “know” that the statement they are making is not true.  This last element must be proven by a prosecutor, whereas any candidate can easily claim they made an innocent mistake.

Functionally prosecution is nearly impossible.  Any Commonwealth's Attorney that pursues this route will likely lose in a high profile, politically charged case.

B. Civil administrative remedies by the SBE or local registrar

These folks are performing administrative duties.  It is not their job to research the histories and backgrounds of potential candidates.  There is nothing improper about them accepting a statement of qualification of candidacy at face value.  In fact, if after receiving a statement of qualification containing all the required elements, and requisite petition signatures, a registrar refused to place a candidate on the ballot due to the registrar's own belief that the candidate is not legally qualified, then the registrar should expect to be subject to a writ of mandamus an unusual legal proceeding designed to force a public official to perform a ministerial act.

This is not the place to seek a remedy.

C. Civil enforcement between private parties

The proper and effective route to challenge a legally unqualified candidate is to bring a civil action against the candidate as early as legally possible.  This lawsuit must be brought on behalf of someone directly affected by the improper candidacy (opposing candidate, voter, local political committee), and must be brought against the legally unqualified candidate, and the local registrar and SBE depending on the type of office.  The party bringing the lawsuit should immediately seek a preliminary injunction against placement of the legally unqualified candidate on the ballot.  The preliminary injunction against placement on the ballot, although difficult to obtain, will likely be the only potential remedy.  The court has the power to reject an injunction after an election on the grounds that it is not in the public interest to upset the results of an election. 

If the goal is simply to make a statement about how a candidate was never legally qualified, a lawsuit after the election is possible.

These remedies require payment of substantial attorneys' fees and the posting of a bond if successful at the preliminary injunction stage.  Between the difficulties in obtaining an injunction, and the costs involved no one seems willing to pursue this route.


There is only one legal remedy (civil enforcement) for someone affected by a candidate they feel is not legally qualified.  Otherwise affected parties can attempt to persuade voters of the illegal nature of a persons candidacy in the court of public opinion.  The problem with this latter route is that voters never seem to notice - or if they do notice they do not care.

Previous shorter versions of parts of this explanation can be found in my comments at: